from the that's-a-lot-of-scratch dept

Back in 2010 we first started covering a really bizarre case involving photographer Daniel Morel, the news agency AFP (Agence France-Presse) and Getty Images. There were multiple levels of insanity involved in the case. First, Morel had taken photos of the aftermath of the big earthquake in Haiti. He'd posted some of those photos to the service TwitPic (which isn't Twitter) and then linked to them via Twitter. A different photographer, Lisandro Suero, copied the images to his own account and tweeted to the world that they were available for licensing. AFP started using those photos, uploaded them to Getty (they have a partnership) and credited them to Suero. Morel, reasonably, wasn't happy about this and sent a nastygram to AFP. And then it started to get bizarre: AFP sued Morel. And, no, it wasn't just for declaratory judgment. They sued Morel claiming that Morel's claim against them was "commercial defamation." Seriously.

It was pretty clear from the very beginning that AFP screwed up royally, and then compounded the problems by choosing to sue the guy who actually took the photos. AFP then took it even further, claiming that Twitter's terms of service allows them to use any photo anyone posts to Twitter without getting a license. That's wrong. First, the clause that AFP points to is very clearly about the person uploading the photo granting a license to Twitter, not to anyone else to use beyond Twitter. There is no way anyone can read it honestly the way that the AFP's lawyers claim to have read it. Second, the photo was uploaded to TwitPic, so AFP was looking at the wrong terms of service anyway. They eventually realized this and pointed to a similarly misread clause from TwitPic. The court told the AFP that it had clearly misread the terms of service not once, but twice. And for reasons that I cannot fathom, rather than working out a settlement, AFP stuck to its guns, leading to a trial last week.

That last link has some of the details of the procedural screwups that continued to plague the case, including Morel's problematic responses to discovery efforts. However, in the end, there were still eight awards for copyright infringement, which would qualify for statutory damages, and then another potential 16 awards for DMCA violations. Incredibly, the jury awarded the maximum of $1.2 million in statutory damages ($150,000 per infringement), finding that the infringement was willful. On the DMCA violations, the jury also awarded additional damages for the DMCA violations. His lawyers are apparently claiming that maximum $400,000 there, but other press reports say it's just $20,000, though that would be below the $2,500 minimum per 16 violations, so I'm not sure that's right. The lawyer also seems to indicate that attorneys' fees were awarded as well, though the linked article above is very unclear on the details, appearing to mixup the various awards.

Either way, it's pretty clear that AFP and Getty have to pay up big time. As I stated early on, AFP (who is known for its own copyright maximalist tendencies -- including suing Google for linking to its stories) clearly acted egregiously both in its initial effort and then in the lawsuit itself. Nearly every choice AFP appears to have made here was bad. It shouldn't have used the photos the way it did. It shouldn't have responded the way it did. It shouldn't have argued the ridiculous legal argument it tried. And it never should have let the case continue, rather than figuring out a way to settle. It is, of course, entirely possible that Morel wouldn't settle at a reasonable rate (his actions in the case were... hardly stellar). But, everything about AFP's actions were ridiculous.

That said, $1.2 million? Even though this was commercial use... And even if the infringement was willful... And even if AFP's conduct was and remained egregious throughout this whole ordeal, it seems insane to argue that $1.2 million is a reasonable award for sharing 8 newsworthy photos. The statutory damages provisions of US copyright law are way out of whack with reality, and this case is just the latest in a long line of examples.

from the patent-that-catchphrase,-yo dept

While we realize that the intricacies of IP law (and its often-attendant ridiculousness) can be rather difficult for the average, uninterested person to parse, it's really not asking too much to expect large international news agencies to make an effort to get the terminology right.

As you recall, Kim Dotcom recently announced he holds a patent for two-factor authentication, which he then waved in the direction of other internet titans like Twitter and Google, promising not to sue in exchange for contributions to his legal defense fund.

Congratulations, AFP. The headline sounds like Facebook itself wrote it, using machine learning to gather IP-related flotsam from the feeds of millions of teenagers, each one bragging about trademarking their copyright on some catchy phrase they misheard on Twitter ("Be careful talking when you have a mouthful of glass") and regurgitating its findings in 40-pt font across the top of Raw Story's piped-in news selection.

The story reiterates the "copyright" claim in the opening paragraph.

Internet mogul Kim Dotcom said Thursday he was considering taking legal action against tech giants such as Twitter, Google and Facebook for infringing copyright on a security measure he invented.

Then it quotes Dotcom tweeting about his patent and even remarks on the fact that Kim posted a patent approved in 2000 as proof. But, even with multiple chances to rescue this story from the unfortunate headline, AFP continues down its chosen path.

Dotcom said he had never sought to enforce copyright on his invention but was now reconsidering in light of the US case accusing him of masterminding massive online piracy through his now-defunct Megaupload file-sharing site.

Now, the hypothetical teens used above can be excused their (hypothetical) ignorance. But a news agency, especially one of AFP's size and longevity? Not a chance. It's especially inexcusable when AFP seems to know the correct terminology when its suing Google for linking to its stories or suing a photographer whose photographs it used without permission. (No, you read that last part right.)

Perhaps AFP truly doesn't understand the definitions and limitations of various IP protections. It certainly doesn't seem to be too well-informed in the linked stories. Maybe AFP views all IP terms as interchangable. It may be striving to know just enough to be dangerous, but to date, it only seems to have gathered enough knowledge to injure itself.

from the stupid-lawyer-tricks dept

Nearly three years ago, we wrote about one of the most bizarre lawsuits we'd ever seen. AFP (Agence France-Presse), a news organization with a history of copyright maximalism (it once sued Google for linking to its stories), had sued photographer David Morel after he accused AFP of using images he had posted to TwitPic in their own news reports. Yes, you read that correctly. AFP used Morel's photos without permission (and actually credited them to someone else), and then AFP sued Morel (rather than the other way around). There were all sorts of confusing factors in the lawsuit (and counterclaims from Morel) that suggested neither party had even the slightest clue what they were talking about.

First off, both AFP and Morel seemed to not realize that TwitPic and Twitter were two totally different services with two totally separate terms of service agreements. Second -- and this is the key whopper -- the AFP insisted that the Twitter and TwitPic terms of service (once they realized they were two different services) granted a universal license for AFP to use those photos. This was a blatant misreading of the terms. Both sites had standard boilerplate licenses that allowed just those services to display content. Those terms only applied between the user and the service. But AFP insisted that because the user granted a license to Twitter and TwitPic, that automatically meant that such a license was granted to third parties like the AFP as well. That, to put it mildly, takes a special level of misunderstanding -- and I'm amazed that AFP had a lawyer willing to stand behind it. In fact, a judge explained all this to the AFP back in 2010. At the time, we expected AFP would just quickly settle. After all, it had clearly copied the images and it had bizarrely sued first on a ridiculous legal theory that a judge explained made no sense.

Instead, the AFP doubled down on that same argument, insisting that its reading of the terms of service was correct. We should be blunt here: there is simply no reasonable way to read the terms of service the way the AFP did. The terms are clear: users retain the rights to their content, and the license only applies to the specific services in question. There is no legitimate way to read the terms of service and believe it automatically grants a license to third parties.

The Court need not fix the precise scope of any license created by the Twitter TOS in
order to resolve the dispute before it. Rather, it suffices to say that based on the evidence
presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this
case.... Put differently, the evidence
does not reflect a clear intent to grant AFP a license to remove the Photos-at-Issue from Twitter
and license them to third parties, nor does it “necessarily require” such a license.... Indeed, this is the fatal flaw in AFP’s argument: it fails to recognize
that even if some re-uses of content posted on Twitter may be permissible, this does not
necessarily require a general license to use this content as AFP has.

The court even points out that this very argument was rejected entirely in that earlier ruling we mentioned above, and appears perplexed that AFP would continue to advance an obviously faulty argument, which it had already been told was faulty.

Arguing for third party beneficiary status, AFP advances on this motion many of the
same arguments that Judge Pauley has already considered and rejected with regard to the express
language of the Twitter TOS. For example, the plain language of the Twitter TOS does not
support finding a license covering AFP’s conduct, even as a third-party beneficiary. As Judge
Pauley already explained, the Twitter TOS spell out expressly the entities to whom a license is
granted, namely Twitter and its partners—and AFP does not contend that it is one of Twitter’s
“partners.” Id. Construing the Twitter TOS to provide an unrestrained, third-party license to
remove content from Twitter and commercially license that content would be a gross expansion
of the terms of the Twitter TOS. Indeed, if Twitter intended to confer such a benefit, it easily
could have manifested this intent. Instead, the Twitter TOS specify that the license was granted
to Twitter and its partners, that the license “includes the right for Twitter to make . . . Content
available,” and that additional uses of this content “by Twitter” or its partners may be made
without compensation. In short, rather than showing that the benefit AFP claims was
“necessarily required,” ... by the Twitter
TOS, the terms of this contract cut against finding that Twitter intended to confer the benefit of a
license on AFP to sell licenses to the pictures posted on Twitter or TwitPic.

In addition, in making its arguments on summary judgment AFP wholly ignores those
portions of the Twitter TOS that are directly contrary to its position, particularly those portions
stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s
yours is yours – you own your content.” These statements would have no meaning if the Twitter
TOS allowed third parties to remove the content from Twitter and license it to others without the
consent of the copyright holder.

So it is unsurprising that AFP loses that point yet again.

What's a bit surprising is that the AFP didn't even try to raise any other defense, such as fair use. While fair use might be a long shot it seems like a much stronger argument than the ridiculous claims about the terms of service. Having, once again, dispensed with the AFP's license argument, the court notes that it can rule in favor of Morel's motion for summary judgment against the AFP.

Morel had also sued both Getty and the Washington Post in this fight. The AFP had turned around and "licensed" the photos it had copied to Getty and the Washington Post had used them via its contract with Getty. There was some additional confusion, because the AFP first credited the photos to someone else -- another person who had copied Morel's photos and posted them to Twitter, claiming the photos were his own (though there were some indications that the AFP knew that the photos they were using had been copied from Morel, as they'd already reached out to Morel about them).

Getty tried to defend itself by claiming safe harbors under the DMCA, basically saying that if there was infringement, it was AFP's fault, and AFP is just a user, so Getty is protected as a third party under the DMCA. The judge, however, rejected this claim. This part of the ruling is actually fairly troubling. The court seems to ignore how "service provider" under the DMCA has been widely accepted as a broad definition. Instead, the court decides that a very limited definition applies, and Getty is not a "service provider" because it sells stuff, rather than provides what the court considers a "service." That is, the court tries to distinguish between selling goods and offering a service, and says that since Getty sells stuff, it's not a service provider, and thus not protected by the DMCA. If that interpretation stands, watch as copyright holders start citing it in attempts to block safe harbor claims from others. At this point, however, the court just says it's an issue to be determined at trial, rather than at the summary judgment stage.

As for the Washington Post, that situation is confused by the fact that Morel's lawyers sent a bunch of communications to the Washington Post about its use of the images, but they mostly chose to send them to general emails or addresses (sometimes mislabeled) which people at the Post claim were never received. Making matters even more complicated, when someone from the Washington Post did seek to delete the images, confusion over the Post's system meant that the person believed the images had been deleted, when they really had not been. Once again, these are issues that will be explored at the trial, assuming there's no settlement.

Of course, as we've explained during all of this, Morel's case isn't the greatest either. Beyond making some bizarre initial claims (including admitting that he never bothered to read the terms of service in the first place), he's been demanding crazy sums of money -- way beyond anything that he could have possibly hoped to charge for a license. In fact, he was demanding high statutory rates for each copy of the image that was used, rather than recognizing that the reuse of his image was all part of a single infringing action. As part of this, he was arguing that AFP and Getty were secondarily liable for each and every later infringement, and that they should each have to pay for every such case. That would add up to a ridiculous sum of money -- potentially over $100 million.

Thankfully, the court quickly disabuses him of such a crazy claim, pointing out that the language of copyright law is pretty clear that the statutory rates cover "all infringements" associated with an infringing action. It even points out that Morel's interpretation would be "absurd."

The statutory text is not a model of clarity on this issue but—on the whole—it favors
Counterclaim Defendants’ interpretation rather than Morel’s. For instance, § 504(c)(1) provides
for “an award of statutory damages for all infringements involved in the action, with respect to
any one work.”... The intent of this statute therefore
appears to be to constrain the award of statutory damages to a single award per work, rather than
allowing a multiplication of damages based on the number of infringements. Morel’s
interpretation would effectively bypass the limit of a single statutory award for “all
infringements” of a work because it would hold Getty or AFP liable for multiple infringements
of a single work. This conclusion is further supported by § 504(c)(1)’s provision that a group of
defendants who are all jointly and severally liable with each other are also to be liable for only a
single statutory damages award, suggesting that a copyright holder should not be allowed to
multiply damages against an infringer based on the infringing activity of jointly liable thirdparties.
Relatedly, as pointed out in McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, at *10
(W.D. Pa. June 4, 2007), the interpretation Morel offers “would render the word ‘any’ [in ‘for
which any two or more infringers and jointly and severally liable’] superfluous, or alternatively,
would rewrite the statute to impose a single award only where ‘all infringers are liable jointly
and severally.’”

Also counseling against Morel’s proposed interpretation is that it would lead to absurd
results.... First, as Counterclaim Defendants point out, Morel’s interpretation of the statutory
damages provision could lead to awards of statutory damages that are massively disproportionate
when compared to the actual harm caused by the infringing defendants. Indeed, as discussed
above, Morel’s position in this case is that—notwithstanding the extent of the actual harm that
Counterclaim Defendants may have caused—he is entitled to tens or hundreds of millions of
dollars of damages. The Court finds it unlikely that Congress intended the statutory damages
provision of the Copyright Act to create such a result.

Of course, that wasn't Morel's only crazy damages argument. He further argued that the parties were liable for each distribution of the image (separate from the claims above) because (he claims) they "circumvented" protection measures by removing his copyright information -- and that they had to pay statutory damages for each image distributed there as well. His ridiculous interpretation claimed that with all of the images AFP and Getty distributed, they owed him another $44.5 million for removing his copyright information. Yes. Million. On top of the other statutory damages he asked for above. Again, the court was not buying it:

The omission of the references to damages “per act” differentiates the damages
available for violations of § 1202 from those available for violations of § 1201, and demonstrates
that damages should not be multiplied based on the number of recipients of the Photos-at-Issue.
Rather, damages should be assessed per violation—i.e., based on AFP and Getty’s actions in
uploading or distributing the Photos-at-Issue, regardless of the number of recipients of these
images.

As we've been saying from the very beginning of this lawsuit, neither side looks very good. Both are making ridiculous arguments -- and that may be part of the reason the case was not settled earlier. Someone at the AFP must realize that their licensing claims make no sense. But if Morel is arguing for hundreds of millions of dollars, you could see how they've been unable to reach an agreeable settlement. Now that the court has clearly rejected the key arguments on both sides, perhaps it means that AFP will finally fork over some money to Morel to settle the case -- and that the amount forked over will be significantly lower than the millions he's demanding.

from the they-can't-be-serious dept

Two years ago, we wrote about one of the most bizarre copyright lawsuits we've ever heard of. News giant AFP (Agence France Presse) -- for reasons that I still cannot begin to comprehend -- decided to proactively sue a photographer, Daniel Morel, after it (AFP) had taken his photos (of the earthquake in Haiti) from TwitPic without permission, and distributed them for sale via Getty Images. So why did AFP sue? Because Morel contacted them upon discovering this, demanding lots of money. And what was AFP's reasoning? Well, it tried to claim that Twitter's terms of service allowed this. There were all sorts of problems with that idea. First of all, the photo was on Twitpic, not Twitter, and the two are different companies. But, more importantly, neither of the terms of service from Twitter nor Twitpic (AFP eventually figured out the difference) allowed AFP to do what it claims. The AFP appeared to deliberately misinterpret the terms of service, which simply give Twitpic the right to make use of the images -- but that does not extend to third parties automatically, which is what AFP implied.

Oh, and did we mention that AFP itself has a history of copyright maximalism, including suing Google for merely linking to AFP stories, with AFP's headline showing in Google News?

And, it gets even worse. During discovery, Morel seems to have received a bunch of pretty damning evidence from AFP suggesting that the company knew all along what it was doing. There was the fact that AFP's director of photography for North and South America reached out to Morel prior to downloading the images. The same guy apparently copies other images from other sites. Multiple people seemed to suggest from the very beginning that they shouldn't use these photos -- including the Director of Photography at Getty, who pointed out that Morel regularly used rival photo agency Corbis. There was also some other damning evidence, including editing the copyright management info, and uploading the image under multiple names, and only issuing a kill notice on one name.

Oh yeah, and then there was the fact that someone inside the AFP sent an email saying:

Anyway, AFP got caught with a hand in the cookie jar and will have to pay.

And this was before AFP decided to sue Morel. Perhaps the company should have just paid up in the first place.

from the copyfraud? dept

The AFP news agency (with its partner Getty) has a bit of a history with some rather odd copyright claims. You may recall the lawsuit that AFP was involved in after it yanked photos from Twitpic of the devastation after the Haiti earthquake without permission, credited the wrong photographer and uploaded them to Getty. Amazingly, once the real photographer called out AFP for this, AFP sued the photographer... and lost big time.

You might think this would lead AFP and Getty to be a bit more careful in how they attribute photographs and claim copyright over them... especially on breaking news stories. And yet... you might have heard how ex-Libyan dictator Gaddafi was caught and killed yesterday. You also might have heard that his capture and beating were captured on video by some of the rebel soldiers who helped capture and kill him. Now, the pictures and video can be pretty graphic, so don't click on the following link if you're a bit squeamish. It's a link to a Getty Images page of a screen capture of the mobile phone video. In the info, however, the cameraphone operator is not named.

If you can't see that, it's the metadata beneath the photo, which notes that it's a video grab from a mobile phone of a National Transitional Council (NTC) fighter... but then says that the credit, if anyone uses the image, should go to: "AFP PHOTO/PHILIPPE DESMAZES (Photo credit should read PHILIPPE DESMAZES/AFP/Getty Images)."

"I was covering the fall of Sirte and heard gunfire a little further west of where I was. The rebels explained to us that Kadhafi’s men had tried to break out at night a little further west. There had been fighting but this sounded more like celebrations than fighting," said Desmazes. "So I asked the fighters to take me there. When I got there, they showed me big concrete cylinders in which they said Kadhafi had been hiding when he was captured. A little further on, I noticed some fighters gathered around a phone. I was lucky because I was the only one to notice them. The owner of the phone showed me the arrest of Kadhafi which he had filmed a few minutes earlier. Given the ambient light, it was very difficult to take a screen grab. The fighters gathered round and gave me enough shadow to take the shot. I was really lucky," he said.

So it's not as if he's just claiming credit for something he had nothing to do with, but it still seems a bit questionable that Desmazes/AFP/Getty have any real claim here. It would seem like this is a very derivative work from the original, without much creative input that would give a copyright to Desmazes. At the very least, it seems like they should give credit to the guy who shot the actual video. Obviously, it took some effort for Desmazes to get his shot of the cameraphone screen (and I must admit, the quality of the image is surprisingly sharp if it's a camera shot of a smartphone screen), but is that enough to get a separate copyright?

And if we take this thought process to the logical conclusion, since Desmazes/AFP get to claim a copyright for taking a photo of a cameraphone screen, if I take a photo of my computer screen showing that same photo, and crop it appropriately, now I could claim to be the copyright holder on the same image? That seems like quite a slippery slope.

from the hot-news-loss dept

"Hot news" was pretty much dead a few years ago. The court-created doctrine, which resulted in a weird quasi-intellectual property on factual information about a century ago, hadn't been used for years and many people had assumed that it was pretty much gone. However, old legal doctrines die hard and, a few years back, some Wall Street firms sought to revive it, claiming that the website theFlyOnTheWall.com violated their "hot news" rights by accurately reporting on how those Wall Street firms were rating stocks. That's factual information and not protected by copyright, but the firms claimed it undermined their business models via hot news... and the lower court agreed, issuing an injunction.

Thankfully, an appeals court has dumped all of that, claiming that hot news is preempted by federal copyright law and that there's nothing wrong with reporting on factual information. The court mainly relies on the famous NBA v. Motorola case, which found that basketball scores and stats were facts and not protected by copyright or hot news. Using the same rules, the court finds that copyright wipes out any "hot news" in this case as well.

We conclude that applying NBA and copyright preemption
principles to the facts of this case, the Firms' claim for "hot
news" misappropriation fails because it is preempted by the
Copyright Act. First, the Firms' reports culminating with the
Recommendations satisfy the "subject matter" requirement because
they are all works "of a type covered by section 102," i.e.,
"original works of authorship fixed in a... tangible medium of
expression." 17 U.S.C. § 102. As discussed above, it is not
determinative for the Copyright Act preemption analysis that the
facts of the Recommendations themselves are not copyrightable.
See NBA, 105 F.3d at 850. Second, the reports together with the
Recommendations fulfill the "general scope" requirement because
the rights "may be abridged by an act which, in and of itself,
would infringe one of the exclusive rights' provided by federal
copyright law," Altai, Inc., 982 F.2d at 716 (citing Harper &
Row, 723 F.2d at 200), i.e., "acts of reproduction, performance,
distribution or display," id. (internal quotation marks omitted).

Third and finally, the Firms' claim is not a so-called
INS-type non-preempted claim because Fly is not, under NBA's
analysis, "free-riding." It is collecting, collating and
disseminating factual information -- the facts that Firms and
others in the securities business have made recommendations with
respect to the value of and the wisdom of purchasing or selling
securities -- and attributing the information to its source. The
Firms are making the news; Fly, despite the Firms' understandable
desire to protect their business model, is breaking it. As the
INS Court explained, long before it would have occurred to the
Court to cite the First Amendment for the proposition:

[T]he news element -- the information
respecting current events contained in the
literary production -- is not the creation of
the writer, but is a report of matters that
ordinarily are publici juris; it is the
history of the day. It is not to be supposed
that the framers of the Constitution, when
they empowered Congress "to promote the
progress of science and useful arts, by
securing for limited times to authors and
inventors the exclusive right to their
respective writings and discoveries" (Const.,
Art I, § 8, par. 8), intended to confer upon
one who might happen to be the first to
report a historic event the exclusive right
for any period to spread the knowledge of it.

The court also distinguishes the classic "hot news" case (INS) by noting that in that case, the competing firm was taking AP news, rewriting it, and pretending it was its own. That's not what's going on here, where ratings are simply being aggregated.

This is an excellent ruling, though I doubt we've seen the end of "hot news" yet. There may still be appeals, and there are a few other such hot news cases out there. But it's nice to see the judges toss this one out.

from the can't-believe-this-case-went-forward dept

One of the more ridiculous lawsuits of 2010 involved AFP -- the big news organization that once sued Google claiming that merely linking to AFP news articles was copyright infringement. However, when it came to others' copyrighted works, AFP took a rather different position. After the Haitian earthquake a year ago, AFP got into a legal tussle with photographer Daniel Morel, who is based in Haiti.

The details and the series of mistakes that resulted in the lawsuit are long and convoluted, so you can read that link to go through all of the details (on both sides of the case), but the basic summary is that Morel posted his photos to TwitPic and announced them on Twitter. Someone else, a guy named Lisandro Suero, copied those photos and posted them to his own TwitPic account. AFP found the photos that Suero had posted, and got permission from Suero to use them (there's a dispute over whether or not AFP really knew the photos were Morel's when it did this). Morel contacted the AFP, pissed off about all of this, and demanded money. In response, AFP sued Morel pre-emptively, asking the court to issue a summary judgment that it did not infringe. AFP's initial line of reasoning was that Twitter's terms of service grant anyone a license to use any such content. This is (a) ridiculous (b) wrong and (c) totally irrelevant, because the photos were uploaded to TwitPic, not Twitter. Morel's initial response was equally ridiculous. He failed to note the difference between TwitPic and Twitter himself (initially), and attacked AFP for not doing its due diligence to find out who really took the photos. Yet, at the same time, he also argued that Twitter's terms of service shouldn't apply because he hadn't bothered to read them. It seems rather silly to claim in a lawsuit that the other party had a responsibility to go that extra step and research something, while at the same time claiming that your own failure to read something, meant you could ignore it.

We had assumed -- incorrectly! -- that once both sides actually learned of the many mistakes they had made that they would look to end the lawsuit as quickly as possible. However, we were amazed to find out that the AFP still wanted to push forward with its completely unwinnable argument that the terms of service granted anyone a license to use the photos, even though the plain language of the clause in question says exactly the opposite.

Thankfully, the court agreed that the case made no sense at all and AFP's arguments were a non-starter. It rejected AFP's attempt to dismiss Morel's countersuit and denied AFP's (original) request for summary judgment. One interesting part of the ruling, concerned a somewhat obscure part of the DMCA involving "copyright management information." The question was whether or not AFP misused this CMI in not taking the content that Morel had put on his Twitpic page, but not on the image itself. The court ruled that the information on the Twitpic page was sufficient as CMI, and the AFP not including that info represented a violation of section 1202. As Eric Goldman notes in his analysis, courts have varied on whether or not 1202 covers content not included in a work itself, so this is one more ruling to add to the pile on that issue.

All in all, it seems likely that AFP will finally just pay up and settle (ditto for all the downstream news orgs who used the photo via AFP and its partner Getty). Of course, I'm still curious why they all couldn't have claimed a "fair use" exception for "reporting," but perhaps that's another discussion for another day...

from the common-sense-ruling dept

Earlier this year, we wrote about an absolutely bizarre lawsuit, where the newswire AFP -- a company who has claimed that merely linking to its stories is infringement -- had sued a photographer whose photograph AFP had used without permission (and with a false credit). The story was so convoluted and filled with confusion that it was really quite amazing that anyone involved is still pushing forward with the case. The "short" version is that a photographer in Haiti when the earthquake happened earlier this year opened a Twitter and a Twitpic account soon after the earthquake, in order to show off some of the photographs he had taken. Another person copied those photos and pretended they were his (also on Twitpic) and offered to license them. The AFP saw the photos from the second person (who didn't actually have the rights to them) and then posted them on its own stories, crediting the second guy.

Soon after this, the actual photographer saw the photos and sent a cease & desist. The AFP then sued the actual photographer, claiming that it had not violated his copyrights. The AFP's argument for this was so confused that it raised questions about whether or not the AFP even really understood what the company had done. First, it claimed that Twitter's terms of service says the following:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

It seems the AFP somehow interpreted this to mean that any content posted to Twitpic could be freely used. There are two massive problems with this line of argument. First, Twitpic isn't Twitter (something that no one involved in the lawsuit on either side seemed to realize -- which is just downright sloppy) and posting an image to Twitpic has nothing to do with Twitter's terms of service. Second, even if the images were covered by Twitter's terms of service, those terms are boilerplate language describing the license between the user and Twitter -- not between the user and any third party. This is plainly obvious from the language of the clause, which notes that it "grants us" the license. The "us" is Twitter. Not any third party. The Twitter license then does allow Twitter to post that content elsewhere -- but that right does not just extend to any third party. This is pretty standard stuff that is found in just about any internet service's terms of use.

I had kind of figured that after this rather massive set of mistakes was highlighted, AFP would realize its errors and back off from the lawsuit. No such luck apparently. Venkat Balasubramani has an update on the case, suggesting that the AFP is sticking by its totally illogical claims. What brought this on is that Twitter has apparently clarified its terms of service, to avoid this sort of situation (even though the original terms seemed pretty clear), but the AFP is still insisting that its tortured interpretation of the terms supports its position. It's somewhat bizarre to see that no one involved in the lawsuit has realized just how insanely weak this position is. It seems like a huge waste of effort for an interpretation of terms of service that, if actually believed, would likely come back to haunt AFP.

from the details,-details dept

Apparently the big mainstream reporters don't even bother with basic fact-checking any more. Last week, we wrote about how a bogus story was making the rounds, pretending that this last election was a referendum on net neutrality, after a paid consultant to the broadband industry put up a blog post noting that 95 Democratic candidates who had signed a pro-net neutrality pledge had lost. What was not mentioned by all the press who covered this was that (a) that particular list involved challengers, not incumbents, and almost all of them were in districts where they were almost certainly going to lose anyway (b) if you looked at a different list of incumbent Democrats who signed a pledge supporting net neutrality, none of them lost and (c) if you looked at a list of incumbent Democrats who signed an anti-net neutrality pledge, many of them did, in fact, lose their races to challengers. Point being: this race was not at all about net neutrality, but the press seems to have glommed onto that "all 95 who supported net neutrality lost" and simply refuse to fact-check it at all.

Take, for example, the piece written by reporter Chris Lefkow, of AFP, and published over the weekend -- long after many sites had debunked this particular talking point. In it, Lefkow seems to get pretty much all of the details wrong. Admittedly, he's "paraphrasing" from (notoriously anti-net neutrality) Richard Bennett's blog:

Bennett, in a blog post at Hightechforum.org, noted that all 95 Democratic members of the House and Senate who had signed a public pledge to protect an "open Internet" had lost their seats in the Republican tidal wave.

Apparently, Lefkow and the AFP (which I had thought was better than this), don't think you need to fact-check even the most basic claims as long as they appear on a blog somewhere. First of all, anyone who paid any attention whatsoever to the election last week would know that between the House and the Senate, 95 seats were not lost -- in total. As I'm writing this up, there are still some races that haven't been officially called, but of the official races, the Dems lost 60 seats in the House and another 6 in the Senate. There are 9 uncalled House races and 1 uncalled Senate race -- so at most, the Democrats could have lost 76 seats. So anyone who even paid minimal attention to the election would know that this claim is false. The 95 number, as we noted, is about 95 Democratic challengers, not incumbents. And yet here's one of the bigger mainstream publications claiming, without any support, that 95 incumbents lost their seats over net neutrality.

from the they-will-regret-this dept

Yesterday we wrote about Google and Twitter's amicus brief in the infamous FlyOnTheWall hot news case, and the folks over at the Associated Press were kind enough to send over a link to the amicus brief from a huge coalition of newspapers. Basically, every big US newspaper or newspaper organization signed on to this one, including the Associated Press, AFP, the NY Times, the Washington Post, Gannett, McClatchy, Belo, Scripps, Time, and the Newspaper Association of America (just to catch everyone else). Considering that the AP has been leading the charge to bring back hot news, you can probably guess where this one is going:

The short summary? "We don't care about TheFlyOnTheWall or Barclays or this specific case, but we're scared to death that you might make a ruling that says the hot news doctrine should go away."

I'm still sort of amazed that any serious news organization supports the hot news doctrine, because it's almost guaranteed to come back and bite them if it is regularly used again. All of the newspapers above rely on rewriting news from other publications to some extent, whether they admit it or not. If they really support this, they're going to run into trouble themselves, even if they're apparently unwilling to admit it. It's incredibly short-sighted.

Also weird is the claim that these newspapers "rely" on hot news today. They don't. Sure, the hot news doctrine has technically been around for about a century, but it's barely been used at all in the last few decades. It was, for all intents and purposes, a dead doctrine that many considered not worth keeping around (pdf). To claim that these organizations have relied on the hot news doctrine is ridiculous, because it's barely been showing up in court until recently.

Either way, it looks like lots of parties who are concerned about "hot news" have realized that TheFlyOnTheWall case has become ground zero for whether or not "hot news" is actually allowed.